November 8, 2011Remember Kara Kowalski? Maybe not. 2005 was almost 7 years ago, and sadly, so many instances of cyberbullying like hers have been in the news since then. Kara, a cheerleader and reigning “Queen of Charm” at Musselman HS, created a MySpace page called S.A.S.H. and invited a number of her friends to check it out. In her deposition, Kara claimed that S.A.S.H. stood for Students Against Sluts Herpes, but her peers said otherwise. What it really stood for was Students Against Shay’s Herpes, Shay being a fellow student who was pictured on the page. Students posted photos, photoshopped them, left derogatory messages, and were, in general, demeaning and hateful. Kowalski , found guilty by the school officials of creating a ‘hate website’ which was against school anti-bullying policies, was suspended for 5 days, kicked off the cheerleading squad, and (ironically) prevented from crowning the next “Queen of Charm.” Kowalski sued the school, claiming they violated her free speech and due process rights, and claiming the school had no authority to punish her, as she had created the website from her home. She lost her case, and just this summer, lost her appeal to the U.S. Court of Appeals for the Fourth Circuit. This has not deterred her. She is now seeking Supreme Court Review—and, sooner rather than later, the Supreme Court is going to need to revisit the issue of student’s freedom of speech, which they ruled on in Tinker vs. Des Moines in 1969 (see my earlier blogs on cyberbullying). Julie Hilden, writing for CounterPunch, is hoping she does not get it. Hilden discusses the complexities in the case, most notably the fact that legal remedies already exist to address Shay’s rights, a fact which fritters away her need for school authorities to intervene on her behalf, and the blurring of lines distinguishing a bullying case from a First Amendment case. While Hilden’s arguments are convincing, Kowalski’s behavior was heinous, and surely bullying behaviors which the courts will need to address will be complicated, and involve Freedom of Speech issues. AND, for precisely that reason, the court will need to sift the complex set of factors which are involved in this claim, and determine which to prioritize in setting legal precedent. That would seem to be half the battle in such cases—‘seem to be’ from the perspective of a concerned citizen, not a lawyer. Refresh your memory of the case Would you want your school to be able to sanction Kowalski if she created a MySpace page about your daughter, turning her into a social pariah at school? Would it be reasonable to claim such a page would interfere with her ability to learn? (Are my pandering, emotional appeals going to be left to dangle off a legal chessboard? Should they be?)